Reese v. Smith

• Decision Date: 31 January 1849
• Citation: 12 Mo. 344
• Parties: REESE v. SMITH, EXECUTOR OF SMITH.
• Court: Missouri Supreme Court

12 Mo. 344

REESE

v.SMITH, EXECUTOR OF SMITH.

Supreme Court of Missouri.

January Term, 1849.

APPEAL FROM MARION CIRCUIT COURT.

CARTY WELLS, for Appellant.

Ist. It is at least doubtful whether when there are express covenants in a deed, the words, “grant, bargan and sell,” can have the effect given them by statute. Whether the making of express covenants does not indicate the intention of the grantor to make no others. Whether the express covenants do not operate as a limitation on those words and repel the idea of implied covenants. 2nd. A covenant of seizen and power to sell, &c., are executed when the deed is delivered, and are then broken if ever. The specific execution of them is impossible. There is no precedent or an authority for a court's attempting to do so. 3rd. There is no power in the court or even in the Legislature to compel a party to accept anything in lieu of the damages adjudged on a covenant broken on an executed contract and there is no precedent for the exercise of such a power. 4th. The covenant of seizen, and the covenant of further assurance are separate and distinct covenants--wholly independent of each other, a suit may be brought for the breach of the one, whether the other be broken or not, and there is no power either in the party or in the court to substitute the performance of one for damages for the breach of the other, and for this there is no precedent. 5th. A covenant for further assurance is not complied with by making a new deed and conveying a new title. If the grantor had no title when he made his deed, he cannot further assure it. To give further assurance, is to make a new deed or to remove some incumbrance. 6th. Complainant has at least conveyed no title to Reese. The land originally belonged to Williams, who conveyed it to Lewis county. The County Court appointed Reddish a commissioner to sell town lots on the land. He sold to McReynolds and could only convey to him. He could not, ten years after, convey to complainant. He had no title, only a power; and could only convey according to that power. The law gave him no such power. Williams having conveyed to the county had no title left in him.

GLOVER & CAMPBELL, for Appellee. In this case Smith contracted with Reese that he, Smith (as we construe the contract), was seized of an indefeasible estate in the property conveyed, and that it was free from incumbrances, but that if this should not be the case, as both parties supposed, the said Smith would make further assurances, that is, would make the title good. See Rev. Code 1835, the covenant for further assurance is a collateral security to the other covenants in the deed; is executory in its nature and equally the subject of a specific execution by both parties. Specific execution may be had of all executory covenants touching real-estate. 2 Tucker's Com. 462, specific performance will be granted after the time fixed for performance when the time is not material. 1 Sugden, top p. 502. At law the time fixed is always deemed material, 1 Sugden, 491, but equity looks into the cause of the delay, and if innocent, holds the time not material. Where the vendee does not treat the time as material by insisting on performance at the time, it is regarded in equity as waived. 1 Sugden, 498. But if the vendor in case of default being urged by the vendee take no steps to comply, he cannot be aided in equity. Where the vendor has been guilty of no gross neglect and brings his title after the day he shall be aided. 1 Sugden, 501. Where the time is not material and the title is bad, the vendor may perfect it and make the vendee take it. If no time is fixed, the vendor has a right to a demand from the vendee and the party who has not been in fault may afterwards procure the title. 1 Sugden, 503; 1 Wheat. 179; 4 Eq. Dig. 699, No. 5; 1 Marsh. 160. Where either party fails to perform the contract according to its terms or time, a right of rescission may be exercised by the other; but in that case the rescinding party must give notice of his intention to do so. 1 Sugden, 261. Here is no case of rescission or disaffirmance of the contract. The vendee on the contrary, affirmed the contract by accepting a deed, and further affirmed it by bringing a suit not for the purchase-money in assumpsit, but by action of covenant on the contract itself. Smith committed no fraud. His representative, the widow, made no delay more than what grew out of the state of the title which was equally unknown to both contracting parties. Mrs. Smith on the notice given her had a reasonable time to comply with the covenant for further assurances; this was not allowed her, she was sued in an hour after notice given of a defect of title. This was in violation of the covenant to accept further assurances and the judgment at law was unfairly and unjustly sought on the covenant of seizen. Specific execution of the covenant for further assurances will be decreed to the vendor. 2 Coke's Lit. top p. 384-5; 2 Sugden, 115-16; but the right to specific execution is a mutual right or it does not exist. 1 Johns Ch. R. 282. Equity will not enforce one to take where it would not compel the other to give. 2 Tuck. 464. The complainant at the suit of the defendant might have been compelled to procure the title, if she had it not, or to surrender any she might have had. Upon what principle then is it that when she has done what equity enjoins in the performance of the contract, that the other party shall not be compelled to do equity by receiving it. 3 Mon. 312; 3 J. J. Marsh. 54, 55. The bargain was if this title is not good the vendor shall make it good; but there was no chance allowed to make it good till suit brought. The appellant's position is, the covenant for further assurances is solely for the benefit of the vendee, then every title bond is only for the benefit of the vendee. The appellant says he had his election to waive his right upon this covenant and go upon the covenant of seizen alone; this is a right to annul a part of the contract. He contends that the covenant for further assurances is one on which he could elect to have damages or specific execution as he chose. But this cannot be because the covenant of seizen of an indefeasible estate of inheritance covers all damages that can accrue; the covenant of further assurances is one therefore intended to secure the property in specie, like a title bond in the first instance, and being in fact a title bond for a title, if one is not conveyed by deed. If this be not the object of the covenant, it has none. It is thought that because this collateral title bond is in a deed the right of the parties are different; the answer is, the rule is general, all agreements for title to realestate are subjects of specific execution. No hardship has fallen on appellant; he went into possession, improved the property, thus indicated his willingness to take the title if defective, when it could be got: was never disturbed in possession, remained in possession from the day of suit, September 8, 1843, up to January, 1844, and until a title was tendered to him. He has suffered no injury and was only compelled by the decree to take the precise thing he contracted for.

NAPTON, J.

This was a bill in chancery to enjoin a judgment for damages obtained by Reese at law, upon the covenants in a deed conveying to said Reese a lot in the town of Monticello. The bill, answer and exhibits show the following facts: In 1839, W. L. Smith sold a lot in Monticello for $450, and he and wife executed a deed for the same, containing the words “grant, bargain and sell,” and also special covenants of seizen against incumbrances, good right and title to convey, and general warranty. In 1843 Reese brought his action of covenant upon the covenant of seizen in this deed against Mrs. Smith (the covenantor having previously died), who was the devisee of the princical part of the real and personal estate of W. L. Smith, and recovered the purchase-money and interest as damages. He had given notice of the defect of title a day or two previous to the institution of the suit.

Smith, it seems, had purchased the lot of one Davis, who was in possession at the time, and who had a deed from one Simpson, and the latter had also a deed from one Coffman. The last, it appeared, eventually had no title, legal or equitable. So soon as Mrs. Smith was advised of the want of title in her husband, and the intention of Reese to sue, she instituted an investigation into the title, and ascertained that the lot had been sold originally at a public sale of lots in that village, by the commissioners of the County Court, to one McReynolds, and that McReynolds had transferred his title and his evidences of title to one Penin. No deed had been made by the commissioners, but a memorandum of sale had been given. She accordingly procured from Penin a deed for his interest, and also an order upon the commissioner to make the conveyance to herself. This was done and a deed duly executed by the commissioner directly to Mrs. Smith and by her to Reese. The latter deed was tendered to Reese, but declined. This tender was made in January, 1844, before the judgment at law was obtained. This judgment was rendered at the June term, 1844. It appeared from the evidence that Mrs. Smith had used due diligence in procuring this title. It also appeared from both the bill and answer, that the value of property in Monticello, had greatly depreciated since the original purchase of Reese. It was also admitted that Reese had gone into possession immediately after the purchase, and had made some improvements, and that his possession had been undisturbed. The complainant had a decree enjoining all the judgment at law except for the cost, and compelling the defendant to accept the title tendered.

The object of the covenants in a deed is to secure the title and possession of the property conveyed. The covenant of seizen is designed to secure the legal seizen of the land,...